NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1315-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DEAN S. LEE, a/k/a SCOTT PAYTON, PAYTON SCOTT, DEAN S. SCOTT, and SCOTT DEAN,
Defendant-Appellant. _______________________
Submitted May 29, 2025 – Decided July 14, 2025
Before Judges Rose and Puglisi.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 01-05-1497.
Jennifer N. Sellitti, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the briefs).
Grace C. MacAulay, Camden County Prosecutor, attorney for respondent (Maura Murphy Sullivan, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Dean S. Lee appeals from a February 13, 2023 order denying
his second petition for post-conviction relief (PCR) without an evidentiary
hearing. We affirm because the petition was untimely and otherwise lacked
merit.
I.
The facts underlying defendant's convictions are straightforward and
discussed at length in our prior unpublished opinion affirming his convictions
and remanding for resentencing. State v. Lee, No. A-3770-04 (App. Div. May
10, 2007) (slip op. at 2-10). The procedural history that followed was atypical.
We summarize the facts and events that are pertinent to this appeal.
In 2004, a bifurcated jury first convicted defendant of murder and related
weapons offenses for the shooting death of Santiago Peralta following a botched
drug deal. The same jury thereafter convicted defendant of certain persons not
to have weapons. At the homicide trial, the State presented the testimony of an
expert in narcotics distribution who explained the division of labor among drug
sets. During summation, the prosecutor argued defendant was the "enforcer" for
his drug set and shot Peralta for "shorting" the set's dealer. Defendant testified
and called several witnesses to support his alibi defense.
A-1315-23 2 On April 8, 2004, defendant was sentenced to an aggregate prison term of
sixty-four years with a thirty-three-year parole disqualifier. On direct appeal,
we remanded for merger of defendant's possession of a weapon for an unlawful
purpose conviction with his murder conviction. Id. at 20-21. We also ordered
resentencing on his certain persons conviction. Ibid. The Supreme Court denied
certification. State v. Lee, 192 N.J. 294 (2007). For reasons that are not clear
from the record, defendant was not resentenced as directed.
On May 22, 2008, defendant filed a timely PCR petition asserting
ineffective assistance of trial counsel for failure to call an alibi witness. Neither
the parties nor the PCR judge, who had presided over defendant's trials,
addressed defendant's resentencing. The judge denied PCR on August 31, 2010,
and we affirmed. State v. Lee, No. A-1728-11 (App. Div. July 25, 2014) (slip.
op. at 1). In our July 25, 2014 decision, we noted the parties did not include a
copy of the judgment of conviction in their appellate submissions. Id. at 2. We
"assume[d] from the absence of any comment on the subject in either brief, that
on some unspecified date after the remand defendant's original aggregate
sentence . . . was reimposed." Ibid. The Court denied certification. State v.
Lee, 221 N.J. 219 (2015).
A-1315-23 3 In 2016, defendant filed a petition for habeas relief in the United States
District Court for the District of New Jersey, but his petition was dismissed on
administrative grounds, Lee v. Johnson, No. 16-0477, 2016 U.S. Dist. LEXIS
11858, at *1-2 (D.N.J. Feb. 2, 2016), and ultimately reinstated on defendant's
motion, Lee v. Johnson, No. 16-0477, 2016 U.S. Dist. LEXIS 40116, at *7
(D.N.J. Mar. 28, 2016). On September 28, 2018, the district court stayed
defendant's petition conditioned upon exhaustion of his state court remedies
within forty-five days. Lee v. Johnson, No. 16-477, 2018 U.S. Dist. LEXIS
167696, at *3 (D.N.J. Sept. 28, 2018).
On February 8, 2019, 1 defendant, pro se, filed an untimely second PCR
petition asserting ineffective assistance of trial counsel, PCR counsel, and
appellate counsel. He also sought appointment of counsel.
On June 18, 2019, the second PCR judge dismissed defendant's petition
as untimely under Rule 3:22-12(a)(2), and denied defendant's request for
appointment of counsel. The judge denied defendant's ensuing motion to
reinstate the petition without issuing a statement of reasons. On October 18,
2019, the judge sua sponte vacated the order, reinstated defendant's second PCR
1 In his decision, the second PCR judge noted defendant filed the petition on October 30, 2018. The petition is dated October 30, 2018 but stamped filed on February 8, 2019. A-1315-23 4 petition, and scheduled a return date on the motion. The parties did not appear
and the motion was not decided.
On June 14, 2022, the second PCR judge sua sponte reinstated defendant's
second PCR petition and afforded the parties an opportunity to file briefs
addressing the timeliness and merits of the petition. In his brief, defendant
argued he was denied a fair trial because, during summation, the prosecutor
referred to him as a drug enforcer and liar. He further claimed PCR counsel was
ineffective for failing to raise trial counsel's failure to retain certain expert
witnesses. Lastly, defendant argued trial counsel failed to retain an investigator
to support his alibi defense.
During argument on defendant's petition, second PCR counsel 2 clarified
defendant's claim regarding the prosecutor's summation comments was an
ineffective assistance of counsel claim. Second PCR counsel argued first PCR
counsel should have asserted trial counsel was ineffective for failing to object
to the comments. The judge acknowledged the State addressed the claim
accordingly and, as such, was not prejudiced by defendant's argument.
2 We glean from the record second PCR counsel was appointed prior to oral argument. A-1315-23 5 On February 13, 2023, the judge issued a written decision denying
defendant's second PCR petition. The judge found defendant's second petition
was untimely filed because it was filed more than eight years after the denial of
his first PCR and therefore dismissed the petition pursuant to Rule 3:22-12.
Further, the judge found defendant's claim regarding the prosecutor's summation
remarks was barred by Rule 3:22-4(a) because this issue "could easily have been
raised in any prior proceeding."
Notwithstanding the procedural bar, the judge considered the merits of
defendant's arguments. The judge found the prosecutor's remarks were proper
commentary on the drug expert's testimony presented at trial. Overall, the judge
found defendant could not establish prosecutorial misconduct "so egregi ous as
to deprive him of a fair trial." The judge also found defendant's claim that trial
counsel was ineffective for failing to retain certain expert witnesses was
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1315-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DEAN S. LEE, a/k/a SCOTT PAYTON, PAYTON SCOTT, DEAN S. SCOTT, and SCOTT DEAN,
Defendant-Appellant. _______________________
Submitted May 29, 2025 – Decided July 14, 2025
Before Judges Rose and Puglisi.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 01-05-1497.
Jennifer N. Sellitti, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the briefs).
Grace C. MacAulay, Camden County Prosecutor, attorney for respondent (Maura Murphy Sullivan, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Dean S. Lee appeals from a February 13, 2023 order denying
his second petition for post-conviction relief (PCR) without an evidentiary
hearing. We affirm because the petition was untimely and otherwise lacked
merit.
I.
The facts underlying defendant's convictions are straightforward and
discussed at length in our prior unpublished opinion affirming his convictions
and remanding for resentencing. State v. Lee, No. A-3770-04 (App. Div. May
10, 2007) (slip op. at 2-10). The procedural history that followed was atypical.
We summarize the facts and events that are pertinent to this appeal.
In 2004, a bifurcated jury first convicted defendant of murder and related
weapons offenses for the shooting death of Santiago Peralta following a botched
drug deal. The same jury thereafter convicted defendant of certain persons not
to have weapons. At the homicide trial, the State presented the testimony of an
expert in narcotics distribution who explained the division of labor among drug
sets. During summation, the prosecutor argued defendant was the "enforcer" for
his drug set and shot Peralta for "shorting" the set's dealer. Defendant testified
and called several witnesses to support his alibi defense.
A-1315-23 2 On April 8, 2004, defendant was sentenced to an aggregate prison term of
sixty-four years with a thirty-three-year parole disqualifier. On direct appeal,
we remanded for merger of defendant's possession of a weapon for an unlawful
purpose conviction with his murder conviction. Id. at 20-21. We also ordered
resentencing on his certain persons conviction. Ibid. The Supreme Court denied
certification. State v. Lee, 192 N.J. 294 (2007). For reasons that are not clear
from the record, defendant was not resentenced as directed.
On May 22, 2008, defendant filed a timely PCR petition asserting
ineffective assistance of trial counsel for failure to call an alibi witness. Neither
the parties nor the PCR judge, who had presided over defendant's trials,
addressed defendant's resentencing. The judge denied PCR on August 31, 2010,
and we affirmed. State v. Lee, No. A-1728-11 (App. Div. July 25, 2014) (slip.
op. at 1). In our July 25, 2014 decision, we noted the parties did not include a
copy of the judgment of conviction in their appellate submissions. Id. at 2. We
"assume[d] from the absence of any comment on the subject in either brief, that
on some unspecified date after the remand defendant's original aggregate
sentence . . . was reimposed." Ibid. The Court denied certification. State v.
Lee, 221 N.J. 219 (2015).
A-1315-23 3 In 2016, defendant filed a petition for habeas relief in the United States
District Court for the District of New Jersey, but his petition was dismissed on
administrative grounds, Lee v. Johnson, No. 16-0477, 2016 U.S. Dist. LEXIS
11858, at *1-2 (D.N.J. Feb. 2, 2016), and ultimately reinstated on defendant's
motion, Lee v. Johnson, No. 16-0477, 2016 U.S. Dist. LEXIS 40116, at *7
(D.N.J. Mar. 28, 2016). On September 28, 2018, the district court stayed
defendant's petition conditioned upon exhaustion of his state court remedies
within forty-five days. Lee v. Johnson, No. 16-477, 2018 U.S. Dist. LEXIS
167696, at *3 (D.N.J. Sept. 28, 2018).
On February 8, 2019, 1 defendant, pro se, filed an untimely second PCR
petition asserting ineffective assistance of trial counsel, PCR counsel, and
appellate counsel. He also sought appointment of counsel.
On June 18, 2019, the second PCR judge dismissed defendant's petition
as untimely under Rule 3:22-12(a)(2), and denied defendant's request for
appointment of counsel. The judge denied defendant's ensuing motion to
reinstate the petition without issuing a statement of reasons. On October 18,
2019, the judge sua sponte vacated the order, reinstated defendant's second PCR
1 In his decision, the second PCR judge noted defendant filed the petition on October 30, 2018. The petition is dated October 30, 2018 but stamped filed on February 8, 2019. A-1315-23 4 petition, and scheduled a return date on the motion. The parties did not appear
and the motion was not decided.
On June 14, 2022, the second PCR judge sua sponte reinstated defendant's
second PCR petition and afforded the parties an opportunity to file briefs
addressing the timeliness and merits of the petition. In his brief, defendant
argued he was denied a fair trial because, during summation, the prosecutor
referred to him as a drug enforcer and liar. He further claimed PCR counsel was
ineffective for failing to raise trial counsel's failure to retain certain expert
witnesses. Lastly, defendant argued trial counsel failed to retain an investigator
to support his alibi defense.
During argument on defendant's petition, second PCR counsel 2 clarified
defendant's claim regarding the prosecutor's summation comments was an
ineffective assistance of counsel claim. Second PCR counsel argued first PCR
counsel should have asserted trial counsel was ineffective for failing to object
to the comments. The judge acknowledged the State addressed the claim
accordingly and, as such, was not prejudiced by defendant's argument.
2 We glean from the record second PCR counsel was appointed prior to oral argument. A-1315-23 5 On February 13, 2023, the judge issued a written decision denying
defendant's second PCR petition. The judge found defendant's second petition
was untimely filed because it was filed more than eight years after the denial of
his first PCR and therefore dismissed the petition pursuant to Rule 3:22-12.
Further, the judge found defendant's claim regarding the prosecutor's summation
remarks was barred by Rule 3:22-4(a) because this issue "could easily have been
raised in any prior proceeding."
Notwithstanding the procedural bar, the judge considered the merits of
defendant's arguments. The judge found the prosecutor's remarks were proper
commentary on the drug expert's testimony presented at trial. Overall, the judge
found defendant could not establish prosecutorial misconduct "so egregi ous as
to deprive him of a fair trial." The judge also found defendant's claim that trial
counsel was ineffective for failing to retain certain expert witnesses was
unsupported by "a proffer of what these proposed experts would have opined,
nor what any defense witness would have said."
Ultimately, the judge dismissed the petition as untimely and denied it as
lacking merit. The judge found "defendant presented no competent evidence
demonstrating" ineffective assistance of counsel and "there were no errors
capable of prejudicing defendant individually or taken together." Because
A-1315-23 6 defendant did not establish a prima facie case of ineffectiveness, the judge
concluded defendant was not entitled to an evidentiary hearing.
On July 28, 2023, the present PCR judge resentenced defendant to an
aggregate prison term of sixty-two years with a thirty-three-year parole
disqualifier after ordering the appropriate merger. Defendant appealed from the
sentence imposed, and we heard the matter on a sentencing calendar pursuant to
Rule 2:9-11. We vacated defendant's sentence and remanded for resentencing
following issuance of an updated presentence report. State v. Lee, No. A-2284-
23 (App. Div. Dec. 4, 2024). To date, defendant has not been resentenced. 3
On appeal, defendant reprises the following arguments for our
consideration:
POINT I
THE PROCEDURAL BAR OF RULE 3:22-12 SHOULD BE RELAXED WHERE THE NEED FOR FINALITY AND CERTAINTY OF JUDGMENT IS NOT COMPELLING AND DEFENSE COUNSEL'S INEFFECTIVENESS PREJUDICED DEFENDANT'S RIGHT TO A FAIR TRIAL.
3 Pursuant to an inquiry by the Appellate Division's Clerk's Office, resentencing is scheduled for August 8, 2025. A-1315-23 7 POINT TWO
THE PROCEDURAL BAR OF RULE 3:22-4(a) DOES NOT APPLY OR SHOULD BE RELAXED BECAUSE DEFENDANT'S DUE PROCESS RIGHT TO A FAIR TRIAL WAS FRUSTRATED BY THE ASSISTANT PROSECUTOR'S REFERENCES TO HIM AS "THE ENFORCER" OF AN ALL[E]GED "DRUG SET."
POINT THREE
THE PCR JUDGE ERRED WHERE THE COURT DETERMINED THAT AN EVIDENTIARY HEARING WAS NOT WARRANTED WHERE DEFENDANT'S DUE PROCESS RIGHT TO A FAIR TRIAL WAS INFRINGED BY THE ASSISTANT PROSECUTOR'S DRUG-RELATED COMMENTS IN A NON-DRUG TRIAL.
POINT FOUR
DEFENDANT'S REMAINING CLAIMS RELATING TO HIS TRIAL ATTORNEY'S FAILURE TO RETAIN CERTAIN EX[P]ERT WITNESSES SHOULD NOT HAVE BEEN DISPOSED OF WITHOUT AN EVIDENTIARY HEARING.
A. The PCR judge erred where the court determined that defendant did not proffer what a proposed cellular telephone data expert would have opined.
B. The PCR judge erred where the court determined that Rule 3:22-12 acts as a procedural bar to defendant's assertion for the need to call expert witnesses.
In his reply brief, defendant asserts the following point:
FEDERAL HABEAS REVIEW MAY IN CERTAIN CIRCUMSTANCES EXTEND THE TIME FRAME
A-1315-23 8 WITHIN WHICH TO FILE A PCR PETITION IN STATE COURT.
II.
Our analysis of the issues raised on appeal is guided by a review of the
relevant provisions of the two court rules that explicitly apply to a second or
subsequent PCR. Rule 3:22-4(b) places strict limitations on second and
subsequent petitions for PCR. The Rule compels dismissal of a subsequent PCR
petition unless the defendant can satisfy the time requirement under Rule 3:22-
12(a)(2), and alleges the following grounds for relief:
(A) that the petition relies on a new rule of constitutional law, made retroactive to defendant's petition by the United States Supreme Court or the Supreme Court of New Jersey, that was unavailable during the pendency of any prior proceedings; or
(B) that the factual predicate for the relief sought could not have been discovered earlier through the exercise of reasonable diligence, and the facts underlying the ground for relief, if proven and viewed in light of the evidence as a whole, would raise a reasonable probability that the relief sought would be granted; or
(C) that the petition alleges a prima facie case of ineffective assistance of counsel that represented the defendant on the first or subsequent application for post- conviction relief.
A-1315-23 9 [R. 3:22-4(b).]
In turn, Rule 3:22-12(a)(2) imposes a time limitation for subsequent PCR
petitions. Under the Rule, a second or subsequent petition for PCR must be filed
within one year after the latest of:
(A) the date on which the constitutional right asserted was initially recognized by the United States Supreme Court or the Supreme Court of New Jersey, if that right has been newly recognized by either of those Courts and made retroactive by either of those Courts to cases on collateral review; or
(B) the date on which the factual predicate for the relief sought was discovered, if that factual predicate could not have been discovered earlier through the exercise of reasonable diligence; or
(C) the date of the denial of the first or subsequent application for post-conviction relief where ineffective assistance of counsel that represented the defendant on the first or subsequent application for post-conviction relief is being alleged.
[R. 3:22-12(a)(2).]
A 2009 amendment to the Rule makes clear beyond question that the one-
year limitation for second or subsequent petitions is non-relaxable. See R. 3:22-
12(b); State v. Jackson, 454 N.J. Super. 284, 293 (App. Div. 2018); see also R.
1:3-4(c) (prohibiting the court and the parties from enlarging the time to file a
petition for PCR under Rule 3:22-12). Our courts have uniformly held that
A-1315-23 10 appellate review does not toll the five-year time bar in Rule 3:22-12, State v.
Dillard, 208 N.J. Super. 722, 727 (App. Div. 1986), nor is the time bar extended
when appellate proceedings result in a remand, State v. Dugan, 289 N.J. Super.
15, 20-21 (App. Div. 1996). Moreover, in State v. Brown, we held:
[W]hen a first PCR petition shows it was filed more than five years after the date of entry of the judgment of conviction, . . . a PCR judge has an independent, non- delegable duty to question the timeliness of the petition, and to require that defendant submit competent evidence to satisfy the standards for relaxing the rule's time restrictions pursuant to Rule 3:22-12. Absent sufficient competent evidence to satisfy this standard, the court does not have the authority to review the merits of the claim.
[455 N.J. Super. 460, 470 (App. Div. 2018).]
We discern no reason why that duty would not apply to the PCR court's
consideration of a second or subsequent PCR petition, especially because the
time bar is non-relaxable. Indeed, application of these rules makes plain
defendant's second PCR petition was procedurally barred as his petition was
filed well beyond the one-year time requirement embodied in Rule 3:22-
12(a)(2). As such, the PCR judge properly dismissed his petition.
Because the PCR judge recognized the procedural bar and nonetheless
considered the merits of defendant's contentions in view of the seminal
A-1315-23 11 Strickland/Fritz4 standard, we have likewise done so and conclude those
contentions lack sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2). We affirm substantially for the reasons articulated by the PCR
judge.
Affirmed.
4 Strickland v. Washington, 466 U.S. 668, 687 (1984) (requiring a defendant seeking PCR on ineffective assistance of counsel grounds demonstrate: (1) the particular manner in which counsel's performance was deficient; and (2) the deficiency prejudiced defendant's right to a fair trial); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the standard in New Jersey).
A-1315-23 12